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Secret Laws - Only Kafka
Could Have Imagined It
By Tom Burnett
5-27-11

I'm not afraid of many things - but I am afraid of the
concept of being tried, convicted and executed for violating a secret law
- a law I can't know exists. And I'm scared because the United States
has been under a declared state of martial law since 2001. Obama continued
it on September 10, 2010 for another year. Did you know that?

That means we have no rights. The Pima County, Arizona
SWAT team can kick in your door and murder you - without charging you with
a crime - and without you being guilty of anything at all - as they just
did last week to a former combat Marine who wasn't guilty of anything and
didn't defend himself.

It means that anyone can come to your door and 'disappear'
you without any reason. "It's a secret". The Constitution has
been torn up. And so, I have a new personal policy. I am an American
citizen and I am protected by the Constitution, whether the government
likes it or not, against EXACTLY this sort of thing.

But the Constitution is only as good as the people who
choose to defend it. I choose to defend it. I have a statement to make
publicly:

I am an American citizen. I will never knowingly commit
a crime and I will not be bound by 'secret' laws. I am a former combat
Marine and a retired police officer. I believe the police are my family
- and my family would not arm up and invade my home for the purpose of
killing me. So if someone does, they are not the duly constituted police.
They are terrorists. Probably Islamic terrorists who are disguised as
police officers. They will get me but some of them won't go home - I
will stand against terrorism in my home and in my country.

************************************

This is the stuff of nightmares. So now even laws can
be secret. How does one comply with unknowable laws? Everything the government
does is becoming secret, while everything the public does is becoming open
to scrutiny by government. Last year, some 16 million pages of documents
were classified by the government.

This notion of secret laws seems straight out of a Kafka
nightmare. Kafka's novel, The Trial, begins with a man being arrested
for committing an undisclosed crime contemplated in an undisclosed law.
Neither he nor any lawyer or government bureaucrat he talks to knows what
his crime is. Nobody knows, and the novel ends without anyone ever finding
out. Maybe Kafka was a visionary of future societies.

This is how the novel ends:

[...] He saw how a light flickered on and the two halves
of a window opened out, somebody, made weak and thin by the height and
the distance, leaned suddenly far out from it and stretched his arms out
even further. Who was that? A friend? A good person? Somebody who was taking
part? Somebody who wanted to help? Was he alone? Was it everyone? Would
anyone help? Were there objections that had been forgotten? There must
have been some. The logic cannot be refuted, but someone who wants to live
will not resist it. Where was the judge he'd never seen? Where was the
high court he had never reached? He raised both hands and spread out all
his fingers.

But the hands of one of the gentlemen were laid on K.'s
throat, while the other pushed the knife deep into his heart and twisted
it there, twice. As his eyesight failed, K. saw the two gentlemen cheek
by cheek, close in front of his face, watching the result. "Like a
dog!" he said, it was as if the shame of it should outlive him.

------------------

Thursday, May 26, 2011

Washington's Blog

We've Gone from a Nation of Laws to a Nation of Powerful
Men Making Laws in Secret

Preface: Some defendants are no longer allowed to see
the "secret evidence" which the government is using against them.
See this and this. The U.S. Supreme Court has also ruled that judges can
throw out cases because they don't like or believe the plaintiff ... even
before anyone has had the chance to conduct discovery to prove their case.
In other words, judges' secret biases can be the basis for denying people
their day in court, without even having to examine the facts. But this
essay focuses on something else: the laws themselves are now being kept
secret.

America is supposed to be a nation of laws which apply
to everyone equally, regardless of wealth or power.

Founded on the Constitution and based upon the separation
of powers, we escaped from the British monarchy - a "nation of men"
where the law is whatever the king says it is.

However, many laws are now "secret" - known
only to a handful of people, and oftentimes hidden even from the part of
our government which is supposed to make laws in the first place: Congress.

The Patriot Act

Congress just re-authorized the Patriot Act for another
3 years.

However, Senator Wyden notes that the government is using
a secret interpretation of the Patriot Act different from what Congress
and the public believe. Senator Wyden's press release of today states:

Speaking on the floor of the U.S Senate during the truncated
debate on the reauthorization of the PATRIOT ACT for another four years,
U.S. Senator Ron Wyden (D-Ore.) ­ a member of the Senate Select Committee
on Intelligence -- warned his colleagues that a vote to extend the bill
without amendments that would ban any Administration's ability to keep
internal interpretations of the Patriot Act classified will eventually
cause public outrage.

Known as Secret Law, the official interpretation of the
Patriot Act could dramatically differ from what the public believes the
law allows. This could create severe violations of the Constitutional and
Civil Rights of American Citizens.

***

I have served on the Senate Intelligence Committee for
ten years, and I don't take a backseat to anybody when it comes to the
importance of protecting genuinely sensitive sources and collection methods.
But the law itself should never be secret ­ voters have a need and
a right to know what the law says, and what their government thinks the
text of the law means, so that they can decide whether the law is appropriately
written and ratify or reject decisions that their elected officials make
on their behalf.

And see this and this.

Other Secret laws

Former constitutional lawyer Glenn Greenwald noted last
week:

The government's increased ability to learn more and
more about the private activities of its citizens is accompanied -- as
always -- by an ever-increasing wall of secrecy it erects around its own
actions. Thus, on the very same day that we have an extension of the Patriot
Act and a proposal to increase the government's Internet snooping powers,
we have this:

The Justice Department should publicly release its legal
opinion that allows the FBI to obtain telephone records of international
calls made from the U.S. without any formal legal process, a watchdog group
asserts.

***

The decision not to release the memo is noteworthy...
By turning down the foundation's request for a copy, the department is
ensuring that its legal arguments in support of the FBI's controversial
and discredited efforts to obtain telephone records will be kept secret.

What's extraordinary about the Obama DOJ's refusal to
release this document is that it does not reveal the eavesdropping activities
of the Government but only its legal rationale for why it is ostensibly
permitted to engage in those activities. The Bush DOJ's refusal to release
its legal memos authorizing its surveillance and torture policies was unquestionably
one of the acts that provoked the greatest outrage among Democratic lawyers
and transparency advocates (see, for instance, Dawn Johnsen's scathing
condemnation of the Bush administration for its refusal to release OLC
legal reasoning: "reliance on 'secret law' threatens the effective
functioning of American democracy" and "the withholding from
Congress and the public of legal interpretations by the Justice Department
Office of Legal Counsel (OLC) upsets the system of checks and balances
between the executive and legislative branches of government."

The way a republic is supposed to function is that there
is transparency for those who wield public power and privacy for private
citizens. The National Security State has reversed that dynamic completely,
so that the Government (comprised of the consortium of public agencies
and their private-sector "partners") knows virtually everything
about what citizens do, but citizens know virtually nothing about what
they do (which is why WikiLeaks specifically and whistleblowers generally,
as one of the very few remaining instruments for subverting that wall of
secrecy, are so threatening to them). Fortified by always-growing secrecy
weapons, everything they do is secret -- including even the "laws"
they secretly invent to authorize their actions -- while everything you
do is open to inspection, surveillance and monitoring.

This dynamic threatens to entrench irreversible, absolute
power for reasons that aren't difficult to understand. Knowledge is power,
as the cliché teaches. When powerful factions can gather unlimited
information about citizens, they can threaten, punish, and ultimately deter
any meaningful form of dissent ...

Conversely, allowing government officials to shield their
own conduct from transparency and (with the radical Bush/Obama version
of the "State Secrets privilege") even judicial review ensures
that National Security State officials (public and private) can do whatever
they want without any detection and (therefore) without limit or accountability.
That is what the Surveillance State, at its core, is designed to achieve:
the destruction of privacy for individual citizens and an impenetrable
wall of secrecy for those with unlimited surveillance power. And as these
three events just from the last 24 hours demonstrate, this system -- with
fully bipartisan support --- is expanding more rapidly than ever.

***

So patently illegal is Obama's war in Libya as of today
that media reports are now coming quite close to saying so directly; see,
for instance, this unusually clear CNN article today from Dana Bash. As
a result, reporters today bombarded the White House with questions about
the war's legality, and here is what happened, as reported by ABC News'
Jake Tapper:

Talk about "secret law." You're not even allowed
to know the White House's rationale (if it exists) for why this war is
legal. It simply decrees that it is, and you'll have to comfort yourself
with that. That's how confident they are in their power to operate behind
their wall of secrecy: they don't even bother any longer with a pretense
of the most minimal transparency.

State of Emergency Cuts the Constitutional Government
Out of the Picture

As I wrote in February:

The United States has been in a declared state of emergency
from September 2001, to the present. Specifically, on September 11, 2001,
the government declared a state of emergency. That declared state of emergency
was formally put in writing on 9/14/2001:

A national emergency exists by reason of the terrorist
attacks at the World Trade Center, New York, New York, and the Pentagon,
and the continuing and immediate threat of further attacks on the United
States.

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United
States of America, by virtue of the authority vested in me as President
by the Constitution and the laws of the United States, I hereby declare
that the national emergency has existed since September 11, 2001 . . .
.

That declared state of emergency has continued in full
force and effect from 9/11 to the present. President Bush kept it in place,
and President Obama has also.

**

On September 10, 2010, President Obama declared:

Section 202(d) of the National Emergencies Act, 50 U.S.C.
1622(d), provides for the automatic termination of a national emergency
unless, prior to the anniversary date of its declaration, the President
publishes in the Federal Register and transmits to the Congress a notice
stating that the emergency is to continue in effect beyond the anniversary
date. Consistent with this provision, I have sent to the Federal Register
the enclosed notice, stating that the emergency declared with respect to
the terrorist attacks on the United States of September 11, 2001, is to
continue in effect for an additional year.

The terrorist threat that led to the declaration on September
14, 2001, of a national emergency continues. For this reason, I have determined
that it is necessary to continue in effect after September 14, 2010, the
national emergency with respect to the terrorist threat.

The Washington Times wrote on September 18, 2001:

Simply by proclaiming a national emergency on Friday,
President Bush activated some 500 dormant legal provisions, including those
allowing him to impose censorship and martial law.

***

Continuity of Government ("COG") measures were
implemented on 9/11. For example, according to the 9/11 Commission Report,
at page 38:

At 9:59, an Air Force lieutenant colonel working in the
White House Military Office joined the conference and stated he had just
talked to Deputy National Security Advisor Stephen Hadley. The White House
requested (1)<http://books.google.com/books?id=JufWziTyNnIC&pg=PA38&dq=%22The+White+House

&ei=zM-vR-LqCKeGtgPl3pmIBg&sig=AIK2hH5iFOWGXrQfQi8WTDOQrHI>
the implementation of continuity of government measures, (2) fighter escorts
for Air Force One, and (3) a fighter combat air patrol over Washington,
D.C.

***

The Washington Post reported in March 2002 that "the
shadow government has evolved into an indefinite precaution." The
same article goes on to state:

Assessment of terrorist risks persuaded the White House
to remake the program as a permanent feature of 'the new reality, based
on what the threat looks like,' a senior decisionmaker said.

As CBS pointed out, virtually none of the Congressional
leadership knew that the COG had been implemented or was still in existence
as of March 2002:

Key congressional leaders say they didn't know President
Bush had established a "shadow government," moving dozens of
senior civilian managers to secret underground locations outside Washington
to ensure that the federal government could survive a devastating terrorist
attack on the nation's capital, The Washington Post says in its Saturday
editions.

Senate Majority Leader Thomas A. Daschle (D-S.D.) told
the Post he had not been informed by the White House about the role, location
or even the existence of the shadow government that the administration
began to deploy the morning of the Sept. 11 hijackings.

An aide to House Minority Leader Richard A. Gephardt
(D-Mo.) said he was also unaware of the administration's move.

Among Congress's GOP leadership, aides to House Speaker
J. Dennis Hastert (Ill.), second in line to succeed the president if he
became incapacitated, and to Senate Minority Leader Trent Lott (Miss.)
said they were not sure whether they knew.

Aides to Sen. Robert C. Byrd (D-W. Va.) said he had not
been told. As Senate president pro tempore, he is in line to become president
after the House speaker.

Similarly, the above-cited CNN article states:

Senate Majority Leader Tom Daschle, D-South Dakota, said
Friday he can't say much about the plan.

"We have not been informed at all about the role
of the shadow government or its whereabouts or what particular responsibilities
they have and when they would kick in, but we look forward to work with
the administration to get additional information on that."

Indeed, the White House has specifically refused to share
information about Continuity of Government plans with the Homeland Security
Committee of the U.S. Congress, even though that Committee has proper security
clearance to hear the full details of all COG plans.

Specifically, in the summer 2007, Congressman Peter DeFazio,
on the Homeland Security Committee (and so with proper security access
to be briefed on COG issues), inquired about continuity of government plans,
and was refused access. Indeed, DeFazio told Congress that the entire Homeland
Security Committee of the U.S. Congress has been denied access to the plans
by the White House (video; or here is the transcript). The Homeland Security
Committee has full clearance to view all information about COG plans. DeFazio
concluded: "Maybe the people who think there's a conspiracy out there
are right".

If members of the Homeland Security Committee cannot
enforce their right to read secret plans of the Executive Branch, then
the systems of checks and balances established by the U.S. Constitution
would seem to be failing.

To put it another way, if the White House is successful
in frustrating DeFazio, then Continuity of Government planning has arguably
already superseded the Constitution as a higher authority.

Indeed, continuity of government plans are specifically
defined to do the following:

***

Those within the new government would know what was going
on. But those in the "old government" ­ that is, the one
created by the framers of the Constitution ­ would not necessarily
know the details of what was happening

The media might be ordered by strict laws ­ punishable
by treason ­ to only promote stories authorized by the new government

See this, this and this.

***

In 2007, President Bush issued Presidential Directive
NSPD-51, which purported to change Continuity of Government plans. NSPD51
is odd because:

NSPD51 was passed without Congressional input

Even the New York Times wrote in an editorial:

Beyond cases of actual insurrection, the President may
now use military troops as a domestic police force in response to a natural
disaster, a disease outbreak, terrorist attack, or to any 'other condition.'
Changes of this magnitude should be made only after a thorough public airing.
But these new Presidential powers were slipped into the law without hearings
or public debate.

So continuity of government laws were enacted without
public or even Congressional knowledge, and neither the public or even
Congress members on the Homeland Security Committee - let alone Congress
as a whole - are being informed of whether they are still in effect and,
if so, what laws govern.

As I wrote last year:

What's the hole that is swallowing up the economy? The
failure to follow the rule of law.

The rule of law is what provides trust in our economy,
which is essential for a stable economy.

The rule of law is the basis for our social contract.
Indeed, it is the basis for our submission to the power of the state.

We are supposed to be a nation of laws, not of men. That's
what humanity has fought for ever since we forced the king to sign the
Magna Carta.

Indeed, lawlessness - the failure to enforce the rule
of law - is dragging the world economy down into the abyss.